Rajasthan High Court - Jodhpur

Gautam Tak vs The State Of Rajasthan ... on 24 April, 2025

Author: Dinesh Mehta

Bench: Dinesh Mehta

[2025:RJ-JD:19873]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6098/2025

Gautam Tak S/o Shri Heera Lal Tak, Aged About 58 Years, Resident Of Kumharon Ka Bas, Merta City, Nagaur.

----Petitioner Versus

1. The State Of Rajasthan, Through Local Self Government Department, Secretariat Government Of Rajasthan, Jaipur.

2. The Director And Joint Secretary, Department Of Local Self Government, State Of Rajasthan, Jaipur.

3. The Additional Director, Department Of Local Self Government, State Of Rajasthan, Jaipur.

4. The Deputy Director (Regional), Department Of Local Bodies, Ajmer.

5. The Executive Officer, Municipal Board, Merta City, Dist.

Nagaur (Raj.)

----Respondents

For Petitioner(s) : Mr. Ravi Bhansali, Sr. Advocate assisted by Mr. Vishal Sharma Mr. Devan Maheshwari Mohd. Amman For Respondent(s) : Mr. Rajesh Panwar, Sr. Adv. & AAG assisted by Mr. Monal Chugh

JUSTICE DINESH MEHTA

Order

24/04/2025

1. By way of present writ petition, petitioner has challenged the

order dated 11.03.2025, whereby he has been removed from the

post of Chairman of the Municipal Board, Merta City and has also

been declared disqualified from contesting election for next six

years.

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2. Mr. Bhansali, learned Senior Counsel apprised the Court

about the backdrop facts and submitted that judicial inquiry was

ordered to be conducted against the petitioner and without copy of

such inquiry report being provided to the petitioner, the

respondents have abruptly passed the order dated 11.03.2025

and not only removed the petitioner from the post of the

Chairman of the Municipal Board but have also debarred him for a

period of six years from contesting elections.

3. Learned Senior Counsel argued that once the judicial inquiry

was over, it was incumbent upon the State Government to have

provided him a copy of the inquiry report and issue a notice

regarding action proposed to be taken.

4. In a bid to lend support to his argument that the principles

of natural justice enjoin upon the State Government to provide a

copy of inquiry report and issue show cause notice before taking

any action under Section 39 (4) of the Rajasthan Municipalities

Act, 2009 (hereinafter referred to as 'the Act of 2009), learned

Senior Counsel relied upon Judgment dated 26.05.2023 rendered

in the case of Smt. Bina Gupta vs. State of Rajasthan and Ors.

(S.B. Civil Writ Petition No. 7186/2023). He submitted that this

question has been set at rest by the Co-ordinate Bench of this

Court, wherein it has been categorically held that opportunity of

hearing must be provided while also furnishing copy of the inquiry

report.

5. Mr. Rajesh Panwar, learned Additional Advocate General

appearing on behalf of respondent - State on the other hand read

the provision of sub-section (4) of section 39 of the Act of 2009

and argued that as the petitioner has taken part in the judicial

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proceedings and has been heard to his satisfaction, further

formality of providing opportunity of hearing is not required, as

the statute is silent in this regard.

6. In other words, he submitted that since sub-section (4) of

section 39 of the Act of 2009 does not envisage grant of

opportunity of hearing and requirement of providing copy of the

inquiry report, the same was not afforded to the petitioner. He

emphasized that unless the statute explicitly provides so, no fault

can be found in the decision of the State Government.

7. Heard learned counsel for the parties.

8. True it is, that the provision of sub-section (4) of section 39

of the Act of 2009 does not expressly provide for grant of

opportunity of hearing and supply of copy of inquiry report. A

textual reproduction thereof will not be out of context.

"39. Removal of member. -

(4) The Judicial Officer so appointed shall proceed to inquire into the charge, hear the member concerned, if he makes appearance, record his findings on each matter embodied in the statement as well as on every other matter he considers relevant to the charge and send the record along with such findings to the State Government, which shall thereupon either order for re-inquiry, for reasons to be recorded in writing, or pass final order."

9. But sub-section (4) of section 39 cannot be read in isolation.

Section 39 will have to be read in its entirety. A perusal of sub-

section (1) of section 39 reveals that it unequivocally empowers

the State Government to remove a member of the Municipality on

the grounds enumerated in clause (a) to (d). It provides that

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order of removal shall be passed after the member concerned has

been afforded an opportunity of explanation. It will not be out of

place to reproduce first proviso to sub-section (1) :-

"Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such existing or retired officer not below the rank of State level services or authority as it may direct and after the member concerned has been afforded an opportunity of explanation."

(*Emphasis supplied)

10. Above quoted proviso speaks of conducting an inquiry either

by the State itself or through such existing or retired officer not

below the rank of State level services or authority. In the case

where member is proposed to be removed on any of the grounds

specified in clause (c) or (d) of sub-section (1), the inquiry is to be

held by Judicial Officer, as has been provided in sub-section (3) of

Section 39. A cursory reading of what has been given under sub-

section (3) and (4) gives an impression as if, the hearing is to be

accorded only before drawing up the statement of the charges,

inasmuch as, sub-section (3) only provides for manner in which

inquiry shall take place.

11. According to this Court, sub-section (3) cannot be read

divorced of sub-section (1), which clearly provides that order of

removal shall be passed after the member concerned has been

afforded an opportunity of explanation. It will be legally wrong to

conclude that such explanation will not be sought, if an inquiry has

been held by a Judicial Officer, simply because the expression

'afforded opportunity of explanation' has not been repeated in

sub-section (3).

[2025:RJ-JD:19873] (5 of 7) [CW-6098/2025]

12. If argument of Mr. Panwar is accepted, it will give rise to a

dichotomy, because out of four grounds mentioned in sub-section

(1), the explanation would be sought in the cases covered by

clause (a) and (b) and not in the eventuality of cases falling in

clause (c) and (d). The basic provision empowering the State to

remove a member is given in sub-section (1) of Section 39 of the

Act of 2009 and proviso appended therewith in express terms

provides for opportunity of explanation.

13. If the State Government is bound to give opportunity of

furnishing explanation when the inquiry has been conducted by it

qua grounds mentioned in clause (a) and (b) it is fortiori

necessary to give right of audience qua charges or grounds

mentioned in clause (c) and (d) of sub-section (1).

14. The inquiry by Judicial Officer has been provided because of

the gravity of charges and need of indepth fact finding exercise. It

will be travesty of justice to ignore mandate of sub-section (1) and

conclude that after inquiry under sub-section (3), explanation of

the member is not required, simply because sub-section (3) does

not talk of opportunity of hearing after the inquiry is over.

15. Without prejudice to what has been held hereinabove, even

if it is taken that cases falling in sub-section (3) are to be decided

in light of the provision contained in such sub-section, then also,

the principles of natural justice which are the basic tenets of the

equity, justice and good conscience, cannot be given a go bye.

They enjoin upon the State Government to observe the same,

before taking extreme action like removal of member of

Municipality and debarring him from contesting election.

[2025:RJ-JD:19873] (6 of 7) [CW-6098/2025]

16. If the principles of natural justice are not otherwise read in

sub-section (4) of section 39 of the Act of 2009, it would create an

anomalous situation. Because, as a natural corollary of removal,

concerned member of the Municipality would be unable to contest

election for a period of six years.

17. In a case, where term of the member is over and/or is about

to be over, he may well not be much concerned about his removal.

But when it comes to disqualification, it would put an embargo

upon his right to contest election, hence unless the member

concerned is put to notice of the proposed action to be taken, any

order passed prejudicial to his rights will fall foul to Article 14 of

the Constitution of India.

18. Similar view has been taken by the co-ordinate Bench in the

case of Smt. Bina Gupta (supra), relevant part whereof is being

reproduced hereinunder:-

"From the conspectus of aforesaid precedential law, the legal position which emerges in the backdrop of provisions of Section 39(4) is that after receipt of the report of the judicial enquiry, the delinquent has to be issued a show cause notice alongwith enquiry report, he has to be afforded a reasonable opportunity to make a representation/reply thereagainst and after affording an opportunity of hearing, the State Government is under an obligation to pass a speaking and reasoned order after objectively considering the findings of the judicial enquiry, the representation/reply, if any, submitted by the delinquent and material on record. However, in the present case, as already observed, none of the aforesaid requirement has substantially been complied with before passing the order impugned dated 25.04.2023 except issuance of a show cause notice dated 06.01.2023 whereby, the petitioner was required to submit her representation/reply by 13.01.2023; but, from the material placed on record by her as Annexure 10 & 11, it is apparent

[2025:RJ-JD:19873] (7 of 7) [CW-6098/2025]

that this notice was dispatched by the respondents on 14.01.2023, i.e., after the expiry of the period prescribed therein for submission of the reply and the order impugned dated 25.04.2023 does not reflect that the reply filed by the petitioner on 15.02.2023 was considered at all. Further, the order reflects neither application of mind by the State Government on the findings of the judicial enquiry or material on record nor, it contains any reason."

19. As an upshot of the discussion foregoing, the writ petition is

allowed.

20. The impugned order dated 11.03.2025, removing the

petitioner from the post of Chairman, Municipal Board, Merta City

and declaring him disqualified for contesting election for next six

years is hereby quashed and set aside.

21. Needless to observe that the State Government shall be free

to issue a notice to the petitioner seeking his explanation as to

why proposed action be not taken. In the present case, since copy

of the inquiry report has been furnished along with the reply, the

State shall not be bound to supply copy of the inquiry report with

the notice.